Ideologue or Principled Jurist?
By Tara Ross

In September, I wrote that an epic battle over the judiciary was looming. Several weeks and one small detour later, it appears that Armageddon may finally be upon us. On Monday, President Bush nominated Third Circuit Judge Samuel Alito to replace retiring Justice Sandra Day O’Connor. Within minutes, the political mudslinging was underway.

 

We shouldn’t be surprised.

 

Almost instantly, liberal Democrats blasted the Alito nomination. Congresswoman Nancy Pelosi mourned, “The radical conservative right is in charge of [the Bush] Administration.” Senator Patrick Leahy called the Alito nomination “needlessly provocative,” arguing that Bush had succumbed to pressure by a “vocal and virulent wing of the Republican Party” that “want[s] a right-wing litmus test” for the judiciary.

 

You’d expect this kind of language from liberal Democrats, but now even Fox News reporters have jumped into the fray. Studio B anchor Shepard Smith spent much of his Monday hour throwing around politically-charged language in reference to Bush’s eminently qualified nominee. The Alito nomination, Smith declared, is a “gift for the ideologues who wanted a conservative judge.” He observed to his guest commentator, “So the swing vote [O’Connor] has been replaced by a conservative ideologue.”

 

Such language is quite dangerous, particularly when it has no basis in fact. As I’ve noted before, “conservative ideologues” did not dictate the Miers withdrawal to the White House. To the contrary, the “extreme right wing” of the Republican Party was split pretty badly over the nomination.

 

But never let the truth get in the way of a good story.

 

Sadly, media misstatements have not stopped with these politicized conclusions regarding the reasons for Miers’s withdrawal and Alito’s subsequent nomination. Reporters continue to use sloppy terminology when discussing Alito’s judicial record, particularly his dissenting opinion in Planned Parenthood v. Casey.

 

With Casey, news anchors seek to summarize Alito’s dissenting opinion in a sound bite, and in doing so, highlight all the wrong details. They report: “Alito argued that wives should have to notify their husbands before getting an abortion,” or “Alito was in favor of notification requirements for wives wishing to obtain abortions.” “What does this case tell us,” the reporter may continue, “about where Alito stands on abortion?”

 

But wait. Alito’s views on abortion or spousal-notification requirements were irrelevant to the case; they are immaterial to his Supreme Court nomination. The only pertinent factor is whether Alito will be a neutral arbiter of the law during his tenure on the Supreme Court. 

 

His judicial record proves that he can be trusted to do precisely that.

 

Alito dissented in Casey for two reasons: First, He sought to apply a then-evolving Supreme Court precedent to the situation before him. Next, he sought to defer to the views of Pennsylvania voters. These Pennsylvania voters, not Alito, had approved the spousal-notification policy.

 

Are we really to believe that a judge who seeks to uphold the will of the people, as expressed at the ballot box, is a dangerous right-wing ideologue?  Give me a break.

 

Further evidence that Alito looks to the law--not to his personal views--on abortion can be found in Elizabeth Blackwell Health Center for Women v. Knoll. Alito joined the majority opinion in Knoll, despite the fact that the holding did not lean in a pro-life direction. As a result of the holding, Medicaid funding of abortion in certain cases was upheld in Pennsylvania. If Alito is personally pro-life, he ignored this belief and instead sought to neutrally apply the law before him.

 

Conservatives who opposed Miers did so for legitimate reasons: We were concerned about the mixed or missing information regarding her judicial philosophy. The Alito nomination pleases us, but not because we “took down” Miers in pursuit of some kind of political agenda. Our ultimate goal is a principled one: We want to have confidence in the judicial philosophy of our next Supreme Court Justice.

 

If wanting a dependable judge who can be trusted to fairly interpret the law makes me an ideologue, then I am proud to say that I am guilty as charged.

 

 

Tara Ross is a regular columnist for The American Enterprise Online and the author of Enlightened Democracy: The Case for the Electoral College.